Taking under consideration discrepancies in the
interpretation and application of tax law provisions,
taxpayers may seek official rulings regarding the interpretation of these provisions. There are two
types of tax rulings: general and individual. A
general ruling is a letter from the Minister of
Finance containing an interpretation of tax law
provisions in the context of discrepancies arising as
a result of the application of these provisions by
subordinate tax authorities. The doctrine indicates
that general rulings are not binding for anyone,
whether tax authorities, taxpayers, tax remitters or
tax collectors. An official ruling cannot provide the
basis for tax decisions issued against citizens and
other legal entities. However, compliance with such
a general ruling by the taxpayer, who is not
formally obliged to do so, results in the taxpayer
being covered by legal protection by the mere fact
that he has acted in reliance on the position set out
in an official ruling. A similar effect occurs if such a
ruling is not taken into account in the resolution of
a tax case by the tax authority. Individual rulings
are instruments issued, against payment, by the
Director of the National Revenue Information
Service, which contain an interpretation of tax law
provisions in the context of an individual factual
background or a future event which concerns the
applicant directly. The objective of the institution
of an individual tax ruling is to mitigate the risk
associated with the fulfilment by a taxpayer or a
tax remitter of the rights and obligations under tax
laws, in particular the obligation to self-calculate
and pay due tax. It follows from the substance of
the ruling that it does not produce binding legal
effects for the person concerned. Compliance with
the ruling depends on the will of the person
concerned. Importantly, for the protection resulting
from tax rulings, it is relevant that the factual
background / future event presented in the
application and the one that actually occurred be
identical, and that the obligations resulting from
the content of the ruling issued be fulfilled. As
such, an individual tax ruling affords protection to
any applicant provided that they comply with the
same. However, a taxpayer cannot derive such
protection from a ruling issued at the request of his
counterparty. As regards general rulings, any entity
in the situation described in the ruling is in a
position to comply with the ruling. Legal protection
resulting from tax rulings is connected with the
structure of “do no harm” principle (Articles 14k to 14m of the Tax Ordinance) whose scope of
application is quite narrowly understood. Legal
protection of the entity benefiting from a general
ruling and the addressee of an individual ruling
means that, to the extent of acting in compliance
with a ruling that has been amended, or declared
expired, or a ruling that has not been taken into
account in the resolution of the tax case, criminal
fiscal proceedings are commenced against such
persons, any proceedings instituted in these cases
are discontinued and interest is not charged.
However, these persons are essentially still
required to pay tax as the tax obligation results
from the law which is not affected by the ruling.
However, in certain cases the guarantee function of
tax rulings will also include a tax exemption – this
will apply to a situation in which a ruling was the
reason for a specific entity to take specific steps
affecting the factual background. A ruling may have
such an impact on improper performance of the
obligation where the event being the subject of the
ruling has not yet occurred at the time of publishing
a general ruling, or serving an individual ruling. The
following conditions must therefore be met: the
obligation has not been properly performed as a
result of compliance with the ruling that has been
amended, or the ruling that has not been taken into
account in the resolution of the tax case and tax
consequences related to the event which
corresponds to the factual background being the
subject of the ruling, arose following the
publication of the general ruling or following the
service of the individual ruling.
Legal protection resulting from tax rulings does not
apply if the tax authority finds, after the ruling has
been issued, that the factual background or the
future event being the subject of this ruling is part
of the activities being the subject of a tax avoidance decision or a decision issued in
connection with the abuse of right, or activities
that may be the subject of a decision issued with
the use of measures curbing contractual benefits.
MILLER CANFIELD
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.